Citation Nr: 1234544
Decision Date: 10/04/12 Archive Date: 10/11/12
DOCKET NO. 10-18 086 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
ATTORNEY FOR THE BOARD
S.J. Janec, Counsel
INTRODUCTION
The Veteran had active military service from September 1968 to June 1972.
This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for bilateral hearing loss.
FINDING OF FACT
Competent medical evidence shows bilateral hearing loss was initially demonstrated clinically years after service, and has not been shown by probative, competent clinical evidence or competent and credible lay evidence to be etiologically related to service or any incident therein, to include in-service exposure to noise.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).
Duty to Notify
The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).
In a December 2008 letter, prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate a claim for entitlement to service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. He was also advised of how disability ratings and effective dates are assigned. Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and the Veteran has not pointed out any specific deficiency to be corrected.
Duty to Assist
The information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA and private treatment records, a VA examination report and opinion, and the Veteran's statements. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.
The February 2009 examination report reflects that the examiner reviewed the Veteran's past medical history, including the service treatment records, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008). The Board therefore concludes that it is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Consequently, the Board finds that VA's duty to assist has also been met in this case.
Analysis
Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2011).
Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011).
Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss (as an organic disease of the nervous system) becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011).
Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The provisions of 38 C.F.R. § 3.385 state that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2011).
In his August 1968 Report of Medical History, the Veteran checked a history of ear, nose or throat trouble but denied hearing loss. Upon entrance examination in August 1968, it was noted that he had a history of otitis in childhood without sequelae. The Veteran's puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
--
5
LEFT
0
-5
5
--
5
In his June 1972 Report of Medical History, the Veteran denied hearing loss. The audiological evaluation conducted during the Veteran's June 1972 separation examination revealed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
15
15
15
20
LEFT
20
15
20
20
20
Upon VA audiological examination in February 2009, the Veteran gave a history of military noise exposure from firearms, aircraft engines and demolitions. He reported the onset of hearing loss in 1970. He denied tinnitus.
Audiometric studies revealed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
35
50
LEFT
10
10
10
40
50
He was diagnosed with mild to moderate sensorineural hearing loss in the higher frequencies. The audiologist determined, based on the Veteran's in-service test results being within normal limits even after in-service exposure to noise, that his currently diagnosed sensorineural hearing loss was not likely incurred related to his military noise exposure.
An April 2008 private hearing chart references hearing loss. An accompanying letter from an ENT specialist and an audiologist confirmed that the Veteran had a sensorineural hearing loss in each ear that could not be corrected medically. Hearing aids were recommended.
Based on the record, the Board finds service connection for bilateral hearing loss is not warranted because the evidence does not show that the Veteran's currently manifest sensorineural hearing loss disability had its onset during active duty, was manifest to a compensable degree within one year of discharge or is otherwise related to his military service. The February 2009 VA opinion is highly probative because it was based on a full review of the record, considered the Veteran's lay statements, and included an explanation of the clinical findings and a rationale. See Bloom, supra. The April 2008 private evaluation did not proffer any opinion regarding the nature or etiology of the Veteran's bilateral hearing loss. Hence, it is of limited probative value. See Bloom, supra. Additionally, there are no virtually medical records documenting hearing loss complaints or problems to satisfy one-year presumptive provisions of 38 C.F.R. § 30309(a) or the continuity of symptomatology requirement of § 3.303(b) until more than 30 years after discharge. In this regard, a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See 38 C.F.R. § 3.303(b); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lack of clinical evidence reflecting treatment pertaining to hearing loss until many years (more than 30) after his discharge from active service is against his claim for service connection.
The Veteran has reported having continuity of hearing loss symptomatology since service. He is competent to provide testimony as to having experienced difficulty hearing during service as well as after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, he is not competent to diagnose himself with hearing loss disability. Id. Simply stated, the Veteran's opinion regarding the presence or etiology of hearing loss disability in service or shortly thereafter lacks probative value and it does not constitute competent medical evidence. See Espiritu, 2 Vet. App. at 492, 494-95. Hearing loss disability is a complex disorder that requires specialized training for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Hence, the Veteran's statements therein cannot be accepted as competent medical evidence.
Moreover, the Veteran's statements regarding continuity of symptomatology are not credible. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). In this case, although the Veteran has asserted continued hearing loss symptoms since 1970, he specifically denied hearing loss in his June 1972 Report of Medical History prior to his separation, and hearing loss was not found upon clinical evaluation at that time. In his April 2010 substantive appeal, the Veteran specifically stated that he was not tested for hearing loss upon his separation. However, his records clearly show that an audiogram was performed. Additionally, the medical records do not denote a diagnosis of hearing loss disability until the mid-2000s, more than 30 years after the Veteran's discharge from military service. The Veteran filed his claim for benefits in 2008. Based on the foregoing, which shows interest and bias in the Veteran's contentions related to his claim for VA benefits, the Board finds that the Veteran is not credible to the extent that he reports that he has had hearing loss symptoms since active service. See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Hence, the evidence does not support a finding of continuity of symptomatology following the in-service reports of noise exposure as required to establish service connection pursuant to 38 C.F.R. § 3.303(b).
As the preponderance of the evidence is against the claim, the appeal is denied. Consequently, the Board concludes that service connection for bilateral hearing loss is not warranted.
ORDER
Service connection for bilateral hearing loss is denied.
____________________________________________
MARK GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs